Court Rules Ringtones Not Entitled to “Public Performance” Royalties

U.S. District Judge Denise Cote ruled Friday that ringtones played on a cell phones do not constitute a "public performance" of the song of the song in question, and thus are not subject to royalty demands by ASCAP, the trade group that represents songwriters and copyright holders. The group had been demanding a fee from telecom carriers for every time a ringtone was players - even if the ringtone was already paid for via a mechanical licensing fee.

In the Summary Judgement, Judge Cote wrote, "Verizon does not recite, render, play, dance or act the ringtone either directly or by means of any device, and thus does not perform the music."

In other words, the judge ruled that Verizon, the main carrier in this particular suit, isn't responsible for when and how a ringtone is played on a customer's phone. In addition, the judge noted that there is no money being generated when a ringtone played, and thus public performance royalties do not apply.

"Verizon's role in playing a ringtone is that it sends a signal to a customer's telephone to indicate an incoming call," the judge wrote. "That signal is the same regardless of whether or not the customer has set her telephone to indicate an incoming call with a ringtone. Verizon does not monitor when and where customers' ringtones play, and it does not earn any money from ringtones beyond the fee paid for the initial download transaction.'

Commenting for the Electronic Frontier Foundation, which submitted a brief in the case arguing against ASCAP's demands, Fred von Lohman wrote, "The ruling is an important victory for consumers, making it clear that playing music in public, when done without any commercial purpose, does not infringe copyright."

For its part, ASCAP expressed disappointment in the decision, but vowed to fight on for the rights of its members: "While ASCAP is disappointed with the ringtones summary judgment issued yesterday by the U.S. District Court, this federal rate court proceeding with mobile providers is about much more than just ringtones."

For instance, ASCAP is lobbying for legislating that require public performance royalties to be paid for the 30 second samples available on iTunes, Amazon, and other online music download services. The group wants to get paid every time one of those samples are played by a customer browsing said services.

Next, they’ll want a royalty payment from 5 year old kids who hum songs to themselves in he playground.

JKP9:25 PM EDT, Oct. 15th, 2009Guest

I really hope more common sense prevails in these stupid suits. These music companies and their associations need to all wake up and face the new realities of the digital world and figure out how to profit from it instead of fighting for a paradigm from the last century.

B9robot12:26 AM EDT, Oct. 16th, 2009Guest

It’s about time some judge had common sense to toss this one out on its ear!
This was absolutely ridiculous!

B9robot12:29 AM EDT, Oct. 16th, 2009Guest

For instance, ASCAP is lobbying for legislating that require public performance royalties to be paid for the 30 second samples available on iTunes, Amazon, and other online music download services. The group wants to get paid every time one of those samples are played by a customer browsing said services.

Here’s another ridiculous greedy ploy by ASCAP. Samples are just that, samples not performances and usually you don’t have an audience behind you that you are playing for and its not used commercially as well. It should be tossed out on its ear just like the ringtones was on the same basis.

I agree in the spirit of what ASCAP is doing. They realize that the artists they represent have been under-compensated for years. They’re just going after the wrong people. Why haven’t we seen a suit from ASCAP against the giant labels?

For that matter, why aren’t more artists cutting out the fat-cat middlemen and selling their own music?